Mumford, Dimetrius v. VanNatta, John R. , 134 F. App'x 940 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2005*
Decided April 29, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3226
DIMETRIUS MUMFORD, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Indiana
South Bend Division
v.
No. 3:03cv0843 AS
JOHN VANNATTA,
Respondent-Appellee. Allen Sharp,
Judge.
ORDER
Indiana inmate Dimetrius Mumford petitioned for a writ of habeas corpus, 28
U.S.C. § 2254, after a Conduct Adjustment Board found him guilty of being a
“habitual rule violator” and sanctioned him with the loss of 150 days’ earned credit
time. On appeal, Mumford challenges two of the violations underlying the habitual
rule violator conviction. We affirm.
On June 19, 2003, a screening officer charged Mumford in a conduct report
with being a habitual rule violator, defined by the Adult Disciplinary Procedures for
Indiana prisoners as an inmate who has been found “guilty of four Class A, B, or C
_______________________
*After examining the briefs and record, we conclude that oral argument is
unnecessary. Accordingly, this appeal is submitted on the briefs and record. See
Fed. R.App.P. 34(a)(2).
No. 04-3226 Page 2
rule violations involving four unrelated incidents within the last six months.”
Mumford exceeded the number of violations required for a habitual rule violator
charge because he received six violations in four months. The Conduct Adjustment
Board (CAB) conducted a hearing where Mumford pled guilty. Mumford did not
appeal his conviction to the facility head or to the final reviewing authority.
The habitual rule violator conviction was based in part on a conduct report
from May 30 that charged Mumford with “insolence, vulgarity, or profanity toward
staff.” Mumford pled guilty to the reduced charge of “disorderly conduct,” and lost
thirty days of outside recreation. Mumford did not appeal to the facility head or the
final reviewing authority.
The habitual rule violator conviction was also based on a conduct report for
“refusing to obey an order from a staff member.” On June 8, Sergeant Lines stated
that during the previous night, he told Mumford to move his mattress and sheeting
to the top bunk of his cell and Mumford refused. At the CAB hearing, Mumford
stated that he moved his bedding to the top bunk, as ordered, but slept on a desk
because he was physically unable to climb to the top bunk. He requested evidence
in the form of his “bottom bunk pass” and “medical packet.” The CAB nevertheless
found him guilty of the charge and sanctioned him sixty days’ earned credit time.
Mumford appealed his conviction for refusing to obey an order to Stanley
Knight, the facility head. Knight declined to disturb the CAB’s findings, but
suspended the sanction on the condition that it be reimposed “along with any new
and appropriate sanction” if within the next six months Mumford was “involved in
any additional conduct incidents.” Mumford’s credits were reinstated, and there is
no evidence that the suspended sanction was ever imposed.
Mumford next appealed his refusal to obey violation to C.A. Penfold, the final
reviewing authority, this time arguing that his refusing to obey and disorderly
conduct violations were insufficient to support the habitual rule violator conviction.
Penfold responded that the sanctions for the refusing to obey and disorderly
conduct violations did not constitute grievous losses and that for non-grievous
losses the final reviewing authority is the facility head.
Mumford then filed this petition in the district court, challenging the
sufficiency of the evidence supporting his habitual rule violator conviction. He
contended that there was insufficient evidence to support his refusing to obey
violation because he was physically unable to climb to the top bunk, that he was
unable to defend against the disorderly conduct charge because he was originally
charged with insolence, vulgarity, or profanity toward staff, and that these two
No. 04-3226 Page 3
violations constituted grievous losses because they delayed his ability to earn credit
by “hamper[ing] his return to a credit class.”
On appeal, Mumford renews his arguments that the refusing to obey charge
was not supported by sufficient evidence because he was physically unable to
comply with the order, and that the reduction of his insolence, vulgarity, or
profanity toward staff charge to disorderly conduct deprived him of the opportunity
to adequately defend against the charge. He also contends, in an undeveloped
argument raised for the first time on appeal, that three of the underlying violations
supporting his habitual rule violator conviction arose out of the same incident.
Finally, he asserts that he exhausted his administrative remedies with regard to
the habitual rule violator conviction because he “mentioned it” when he appealed
the disorderly conduct and refusing to obey violations to the final reviewing
authority.
Indiana inmates have a liberty interest in earned good time and thus are
entitled to basic procedural protections before it can be taken away for misconduct.
See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Montgomery v. Anderson, 262
F.3d 641, 643 (7th Cir. 2001). Due process demands, among other things, that a
prison disciplinary board support its findings with “some evidence” in the record.
See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985); see also
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). This is a lenient standard,
and “[e]ven ‘meager’ proof will suffice as long as ‘the record is not so devoid of
evidence that the findings of the disciplinary board were without support or
otherwise arbitrary.” See Webb, 224 F.3d at 652 (quoting Hill, 472 U.S. at 457).
An inmate may challenge in federal court whether a conviction was supported by
“some evidence,” only where he has raised that issue in all available administrative
appeals. See Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Markham v. Clark,
978 F.2d 993, 995 (7th Cir. 1992).
Mumford is not entitled to relief. First, federal review of his habitual rule
violator conviction is barred because he did not exhaust his administrative
remedies and the time to appeal the conviction has expired. Markham, 978 F.2d at
995. Second, Mumford’s habitual rule violator conviction is supported by some
evidence because even if the two violations he attacks were improperly counted, the
four necessary violations remain. See Webb, 224 F.3d at 652 . But we cannot
directly review the two underlying violations Mumford attacks because neither
charge affected the duration of his custody as required for a suit under §2254. See
Sandin v. Connor, 515 U.S. 472, 486-87 (1995); Montgomery, 262 F.3d at 643.
Finally, Mumford forfeited his claim that three of the disciplinary charges
supporting his conviction were related because he did not present this claim during
the prison administrative review process or in the district court. Hojnacki v. Klein-
No. 04-3226 Page 4
Acosta, 285 F.3d 544, 549 (7th Cir. 2002); Markham, 978 F.2d at 995. Accordingly,
we will not disturb Mumford’s habitual rule violator conviction.
AFFIRMED.